Tai Wah Chung v Mohammad bin Loi (No. KP: 540305-12-5427) (S-02(NCVC)(W)-1267-06/2018)

This is an appeal by the Appellant against the decision of the High Court, given on 14.5.2018, in allowing the Respondent’s claims in seven suits.

The Appellant is the 1st Defendant whereas the Respondents are the Plaintiffs in the High Court suits. They will be referred as in the High Court suits in this judgment.

At the High Court, the Plaintiffs who are the natives of Sabah filed seven suits which involved seven parcels of land all situated at Silabukan, Lahad Datu and registered in the name of the following land owners, namely: a. Suit No. TWU-22NCv- 14/6-2016 in respect of CL 115356824 registered in the name of the deceased Loi Bin Bataur @ PG. Lui Bataur. b. Suit No. TWU-22NCv- 16/6-2016 in respect of CL 115356780 registered in the name of the deceased Sadik Bin Alit. c. Suit No. TWU-22NCv-18/6-2016 in respect of CL 115356726 registered in the name of Abdul Rahu bin Abu Bakar. 3 d. Suit No. TWU-22NCv- 20/6-2016 in respect of CL 115356735 registered in the name of the deceased Jinatong Bin Kelagan. e. Suit No. TWU-22NCv-21/6-2016 in respect of CL 115356762 registered in the name of the deceased PG. Antuyan Bin PG. Duak. f. Suit No. TWU-22NCv-22/6-2016 in respect of CL 115356799 registered in the name of the deceased Balika Bin Karim @ Salihin Bin Karim. g. Suit No. TWU-22NCv-23/6-2016 in respect of CL 115356717 registered in the name of the deceased Punting Bin Balika. [All the lands will be referred together as the “said Lands”]

By order of the Court, the seven Suits were heard together.

Except for Abdul Rahu bin Abu Bakar [“Abdul Rahu”] of CL 115356726 in Suit No. TWU-22NCv-18/6-2016, the other six land owners [“the Deceased Vendors”] have all passed away and are represented by their personal representatives acting as Plaintiffs in the respective suits.

The 1st Defendant [“Tai Wah Chung”], a non-native, has also passed away on 2017 before the trial commenced. He was thereafter represented by the personal representative of his estate acting as 1st Defendant in the respective suits. 4

The 2nd and 3rd Respondents are the Assistant Collector of Land Revenue [“ACLR”] and Director of the Lands & Surveys Department respectively.

The pleaded case of the Plaintiffs in the seven suits are substantially the same. They claimed that they discovered in or about 2013, upon inquiry with the Lands & Surveys Department, Kota Kinabalu, on the status of the land application in respect of the said Lands, that the title deed had been issued in respect of the said Lands and the same were received by the 1st Defendant, who claimed to have purchased the said Lands. They also discovered on 31.3.2014 that 1st Defendant had lodged caveats on the said Lands. It was claimed that neither Abdul Rahu nor the Deceased Vendors had entered into any sale and purchase agreement for the sale of the said Lands with the 1st Defendant. Accordingly, they sought the following declarations : a. That there is no sale and purchase of the said Lands entered between the Plaintiff and 1st Defendant. b. That the said Agreement is null, void and illegal; c. That the transfer of the said Lands to the 1st Defendant is void and illegal. d. That the Plaintiff is the rightful owner of the said Lands. 5 e. An order that the 1st Defendant vacates the said Lands within 14 days of the date of the Court Order.

On or about 7.7.1976, the 1st Defendant entered into a Sale and Purchase Agreement dated 7.7.1976 marked as Exh. “D1” ["the SPA”] with 13 landowners, namely, Abdul Rahu, the Deceased Vendors and six other vendors [all of them will be referred to as "13 Vendors”] for the purchase of 13 parcels of land under Land Application Numbers 74111313 to 325 containing a total area of 195 acres more or less situate Silabukan, Lahad Datu, Sabah [“the 13 parcels of land”] for a total consideration of RM13,000.00.

At the same time, the 13 Vendors also executed a Power of Attorney dated 7.7.1976 ["PA"] marked as Exh. “D2” in respect of the 13 parcels of Land in favour of the 1st Defendant. The PA empowered the 1st Defendant to deal and manage the 13 parcels of Land. It was duly stamped on 7.7.1976 and duly noted at the Central Land Office on 6.2.1980 under CLO PA No. 5919.

Both the SPA and the PA were prepared by Messrs. Hiew & Ching, Advocates & Solicitors, Lahad Datu ["the Firm"].

Upon signing the SPA and the PA, the 1st Defendant paid to the 13 Vendors the agreed selling price of RM13,000.00 equivalent to RM1,000.00 per piece of land, the receipt of which was duly acknowledged under Clause 3 of the Agreement. 6

Pursuant to the PA which irrevocably granted permission to the 1st Defendant to enter upon the 13 parcels of Land to cultivate any crop of economic value, the 1st Defendant immediately from 7.7.1979 entered upon the 13 parcels of Land to begin cultivation of crops thereon without any protest and without any disturbance from the Vendors.

The draft title deeds in respect of the said Lands were duly issued on 11.6.1991 and received by the 1st Defendant pursuant to the PA. The 1st Defendant also paid the premium for the said Land.

From Year 1993 to 2016, the 1st Defendant paid the quit rent on the said Lands.

On or around 14.6.2016 [almost 37 years later], the Plaintiffs filed the seven suits, alleging, inter alia, that Abdul Rahu and the Deceased Vendors had never sold the said Lands and they had never entered into the SPAs with 1st Defendant.

The parties’ agreed issues for determination are:

(i) Whether there were Sale and Purchase Agreement and Power of Attorney in respect of the said Lands entered between the Plaintiff and the 1st Defendant.

Apart from Abdul Rahu, the sole surviving plaintiff in Suit No. TWU- 22NCv-18/6-2016, the witnesses in the other six suits are the personal representatives of the Deceased Vendors.

The 1st Defendant called two witnesses, namely, DW1 who is the Solicitor of the Firm who prepared the SPAs and the PAs and DW2, the son of the late Tai Wah Chung.

The 2nd and 3rd Defendants being nominal parties did not participate in the trial.

On Issue (i), the learned trial Judge believed and accepted the version of the Plaintiffs based on the following reasons, inter alia: a. “ The sole survivor of the agreement was PW3 who testified that he never entered into the sale and purchase agreement and the power of attorney with the 1st Defendant. He denied that he ever signed in both Exh. D1 and D2 although his alleged signature was found in both documents.” b. Upon comparing PW3’s signatures in PW3’s witness statement and Exh. D1 (SPA) and Exh. D2 (PA), the learned trial Judge found that they are ‘completely different’, thus the “desirability of expert evidence to verify and confirm the thumb prints and 8 signature in Exh. D1 and D2 as they were disputed by the Plaintiffs. The burden lies on the 1st Defendant to prove the existence of this agreement and its contents as they were produced by the 1st Defendant to support his case”. c. Thus, the learned trial Judge found that there were no SPAs and PA executed by six Deceased Vendors and Abdul Rahu. d. On Issue (ii), the learned trial Judge found that there was no evidence to show that the contents of Exh. D1 and D2 which were written in English had been read, explained and interpreted to the Deceased Vendors and Abdul Rahu. The manner in which DW1 explained the contents of the SPAs and the PA to the Deceased Vendors and Abdul Rahu, who were either illiterate or attended only primary school, was not sufficiently proven. There was no evidence that they had understood the contents of the SPAs and the PA when they acknowledged the same. With DW1’s “broken Malay”, it is doubtful that the contents of the SNP and PA were correctly and accurately translated. e. Accordingly, the learned trial Judge decided that even if Exh. D1 and D2 existed, they are not valid and binding on the Plaintiffs. f. In respect of Issue (iii), the learned trial Judge decided that consequential to his findings in respect of Issues (i) and (ii), the Plaintiffs are the rightful owners of the said Lands. g. In respect of Issue (iv), the learned trial Judge decided that the Plaintiffs’ actions are within the 12 years limitation period under 9 item 110 or 112 of the Schedule of the Limitation Ordinance (Sabah Cap. 72). Thus, they are not time-barred.

The Appellant listed down 34 grounds in his Supplementary Memorandum of Appeal, many of which are overlapping. GROUNDS 2 & 4 OF SUPPLEMENTARY MEMORANDUM OF

Grounds 2 and 4 of the Supplementary Memorandum of Appeal, which are interrelated, are against the learned trial Judge’s finding that all the Plaintiffs have proven their cases based solely on the evidence of Abdul Rahu, the sole survivor, who denied the execution of the SPA and the PA., considering that the evidence of the personal representatives of the Deceased Vendors were hearsay.

Learned counsel for the 1st Defendant submitted that the learned trial Judge erred in failing to consider that the Plaintiffs who represented the Deceased Vendors bear the burden of proof to prove their case, and that their witnesses who are the descendants of the Deceased Vendors have no personal knowledge of what transpired between the Deceased Vendors and the 1st Defendant because they are not privy or parties to the same. Their evidence are at best hearsay evidence and whatever might be their assertions would be mere conjectures based on their own opinions and not evidence regarding facts in issue and relevant fact. As such, the 10 learned trial Judge ought to have excluded their evidence, citing Motordata Research Consortium Sdn. Bhd. v Ahmad Shahril Abdullah & Ors.1

Learned counsel for the Plaintiffs, on the other hand, contended that the evidence of the Plaintiffs representing the Deceased Vendors are consistent with Abdul Rahu, that is, the Deceased Vendors had never sold the said Lands to the 1st Defendant or received any payment from the 1st defendant. They had never signed/thumb printed the SPAs and the PA nor had they any dealings with the 1st Defendant.

It was submitted that based on DW1’s evidence, the purchase price for the said Lands measuring 195 acres was RM 13,000.00 which is RM1000.00 per acre. It was improbable for the Deceased Vendors to have sold the said Lands for such low value. Further, the 1st Defendant did not produce the receipt for the alleged payment of purchase price.

Section 101 of the Evidence Act 1950 provides that whoever desires any court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, must prove that those facts exist, and the burden of proof is said to lie upon that person. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on 1 [2017] 1 LNS 1142. 11 either side. Clearly the burden of proof lies upon the Plaintiffs who are seeking the recovery of their said Lands.

It cannot be gainsaid that the witnesses for the Deceased Vendors have no personal knowledge of what had transpired between the Deceased Vendors and the 1st Defendant. The notes of proceedings clearly showed that the witnesses for the Deceased Vendors were either at young age in 1979 or did not have personal knowledge as to what transpired between the Deceased Vendors and the 1st Defendant.2 Their evidence are bare denials and at best, hearsay.

PW1 was asked in re-examination whether his father had entered into and signed an agreement and a power of attorney, he answered, “According to my father, he had never.” Q32. Pernahkah ayah kamu menandatangani perjanjian jual beli dan surat kuasa yang melibatkan Tai Wah Chung?

PW2 testified in cross-examination that her deceased husband had never entered into such agreement with the 1st Defendant. Q49. Setujukah kamu dengan saya bahawa nama simati dan cap jari atau tandatangan simati 2 Pages 13-14, 23, 46, 58, 67-68 and 95-96 of the Notes of Proceedings at pages 315-316, 325, 348, 360, 369- 370 and 397-398 of the record of appeal. 3 RECORD OF APPEAL (Part B, Volume 2(1)), page 322. 12 terdapat di mukasurat 8 surat penjanjian dan di mukasurat 16 surat kuasa itu? Tidak setuju. Nama dia ada, tapi dia tidak pernah tandatagan. [page 25 of NOP]4 Q52: Setujukah kamu dengan saya bahawa seorang peguam tidak akan saksikan tandatangan atau cap jari sesiapa kalau orangnya tidak ada di hadapannya? Tidak setuju. Memang dia tidak ada tandatangan. [page 26 of NOP]5 A 57. Kamu sebagai isteri sahaja, macamnana kamu boleh tahu arwah suami kamu tidak pernah jumpa dengan peguam Samson Chin pada masa itu? A Memang tidak pernah. Memang tidak ada itu peguam. Tidak pernah buat apa-apa perjanjian jual beli. [page 28 of NOP].6

In Superintendent of Lands & Surveys Kuching Division & Anor v Mohamad Rambli Kawi, 7 Abdul Wahab Patail JCA [as he then was] described bare denial as "Denials without evidence to justify the 4 RECORD OF APPEAL (Part B, Volume 2(1)), page 327. 5 RECORD OF APPEAL (Part B, Volume 2(1)), page 328. 6 RECORD OF APPEAL (Part B, Volume 2(1)), page 330. 7 [2014] 1 LNS 851 [CA]. 13 denial likewise can carry no weight, and hence the term ‘bare denials’.

The law on hearsay evidence is well-settled. It is reiterated in a recent case of Motordata Research Consortium Sdn. Bhd. v Ahmad Shahril Abdullah & Ors,8 which made reference to R v Turner [1975] 1 All ER 70, at 74, what Lawton LJ held as follows: ‘Our law excludes evidence of many matters which in life outside the courts sensible people take into consideration when making decisions. Two broad heads of exclusion are hearsay and opinion….

The evidence of the witnesses for the Deceased Vendors are bare denials and hearsay with no corroboration or circumstantial evidence to support their denials. It is insufficient to establish the Plaintiffs’ claim.

Given that the witnesses for the Deceased Vendors were not privy or parties to the transaction, we agree with the 1st Defendant that their evidence are at best hearsay evidence or conjecture without any corroboration and/or circumstantial evidence to support their testimonies. As such, the learned trial Judge ought to have excluded their evidence.

Thus, it is our view that the learned trial Judge was clearly wrong when for failing to consider that the burden of proof rests upon the plaintiffs and that their bare denials are insufficient to prove their 8 [2017] 1 LNS 112. 14 claims. Had the learned trial Judge excluded the hearsay evidence of the witnesses for the Deceased Vendors, instead of relying on the bare denials of Abdul Rahu, he would not have hesitated to find that they have failed in discharging their burden of proof.

Accordingly, we find there is merit in Grounds 2 and 4 of the appeal. GROUNDS NO. 3 OF SUPPLEMENTARY MEMORANDUM OF

The complaint under Ground No. 3 is that the learned trial Judge had erred in law and fact when he failed to appreciate that the testimony of Abdul Rahu was not corroborated by any other evidence.

It was submitted that Abdul Rahu merely denied signing the SPA and PA and that he had never entered into any agreement with the 1st Defendant. Abdul Rahu’s denials were not corroborated and there was no circumstantial evidence to support his denials.

PW3, the only surviving landowner, merely denied his signatures in the SPA and the PA. He testified: Q82. Setujukah kamu dengan saya bahawa tandatangan kamu terdapat di Surat Perjanjian Dan Surat Kuasa itu. Tidak setuju, Bukan saya tandatangan.” 15 [page 36 of the notes of proceedings]9

During cross-examination, PW3 was referred to his signature in his witness statement and to his signature in Exh. D1 and D2. He testified: Q83. Rujuk kapada kenyataan saksi kamu, sila lihat tandatangan kamu di Surat Perjanjian dan Surat Kuasa. Setujukah kamu kalau saya katakan tandatangan kamu di dokumen-dokumen ini adalah sama. Tidak setuju. Tidak ada yang sama. [page 36 of the notes of proceedings]10

In Re-examination, PW3 further testified that he had never sold his land to the 1st Defendant. Q100.Rujuk mukasurat 6 dan 14. Tadi apabila kamu dirujuk Surat Perjanjian dan Surat Kuasa ada tandatangankamu disana. Tapi kamu tidak setuju. Boleh kamujelaskan kenapa kamu tidak setuju walaupun ada nama kamu di sana. Saya tidak pernah jual ini tanah sama Tai Wah Chung. 9 RECORD OF APPEAL (Part B, Volume 2(1)), page 338. 10 RECORD OF APPEAL (Part B, Volume 2(1)), page 338. 16

We have no reason to disagree with the 1st Defendant. Hence, there is merit in Ground 3 of the appeal. GROUNDS 5 & 6 of MEMORANDUM OF APPEAL

The complaint under these two grounds is that the learned trial Judge had erred in law by failing to consider the presumption given to documents of 20 years old and section 90 of the Evidence Act 1950 when he arrived at the finding that the signatures of Abdul Rahu in the SPA and the PA executed in 1979 are different from the signature in the witness statement prepared in 2018, and that the 1st Defendant ought to have produced expert evidence to verify the thumb prints and signatures of the Deceased Vendors.

Learned counsel for the 1st Defendant submitted that the SPAs and the PA which were executed in 1976 are more than 20 years old, and they were produced by DW1, the Solicitor who prepared them. Thus, the learned trial Judge ought to have presumed their genuineness and authenticity under section 90 of the Evidence Act 1950.

To support the contention, Khoo Kay Aun & Ors v Koe Liew Hin & Anor 11 was cited. In that case, the Court of Appeal held: [18] Based on the records of the office of the Registrar of Lands and Mines of the State of Penang, there is, we find, overwhelming evidence to show that these trustees were 11 [2016] 1 LNS 1455 [CA]. 17 the registered owners of the land at the material date when the sale and purchase agreement was entered. Since these documents are more than 20 years old and produced from the custody of the relevant authority which we consider proper, the court is perfectly entitled to presume their genuineness and authenticity. This is provided for under section 90 of the Evidence Act 1950 which reads-

"Presumption as to documents 20 years old Where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.". Accordingly, on the strength of the evidence of DW1 with the support of the documentary evidence aforementioned, it is satisfactorily established that the trustees of See Teeoo Kong were the lawful and registered owners of the land at the material date when the sale and purchase agreement was entered. There is moreover the Trust Deed dated 5.8.1987 [Exhibit D15] in respect of which the recitals in paragraphs 2 to 4 further confirm the ownership 18 of the land was vested with the trustees of See Teeoo Kong at the relevant date.

In Fatimah Ahmad & Ors v Mohd Saad Ahmad & Anor, 12 the High Court held: [53] I will begin with s. 90 of the EA 1950 which was raised by the plaintiffs' counsel. Exhibits P8 and P9A were dated 16.9.1990 and 12.11.1990 respectively. The period of 20 years in the s. 90 of EA 1950 is reckoned to be from the date the impugned documents are tendered in court as evidence (see Surendra Krishna v. Mirza Mahammad AIR 1936 PC 15). Exhibits P8 and P9A were tendered in court on 14.6.2015. Clearly, the documents (exhibits P8 and P9A) have fulfilled the requirement of 20 years old document. There is no dispute as to the fact that the documents (exhibits P8 and P9A) were in the custody of the plaintiffs for more than 20 years.

In light of the authorities above, we agree that the learned trial Judge had misdirected himself when his Lordship outrightly dismissed the SPAs and the PA without considering the age of the documents that had existed for 37 years and kept in the custody of the Solicitors who prepared them.

Accordingly, we find merit in this ground of appeal. GROUNDS NOS. 7, 8 & 9 OF THE SUPPLEMENTARY 12 [2016] 1 LNS 216. [HC] 19

The complaint under these three grounds is that the learned trial Judge had fallen into error when His Lordship failed to take into consideration that Abdul Rahu had executed the SPA and the PA and that after a lapse of 39 years, his signature may have changed. The learned trial Judge had further erred by comparing Abdul Rahu’s signature in the SPA and the PA with his signature in the witness statement when His Lordship does not have the expertise to do so.

Learned counsel for the 1st Defendant’s submission is that there is a possibility for Abdul Rahu being a Plaintiff in the action to have disguised his signature when he execute his witness statement, as he was denying his signatures in the SPA and the PA.

There is no legal bar for the court to compare the admitted and disputed signatures with naked eyes without the assistance of a handwriting expert’s opinion and to form an opinion and then make a finding based on that comparison.

Section 73(1) of the Evidence Act 1950 provides: In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by court with the one which is to be proved 20 although that signature, writing or seal has not been produced or proved for any other purpose.

In Letchumanan Chettiar Alagappan (As Executor To Sl Alameloo Achi (Deceased)) & Anor V. Secure Plantation Sdn Bhd, 13 the Federal Court held:

(i) a handwriting expert under s. 45 of the Act; (ii) anyone familiar with the handwriting of the persons concerned, as provided by s. 47 of the Act; or (iii) the court itself under s. 73 of the Act. If the feature of writing and signature on the documents are so glaring, the court can form an opinion by itself and further exercise under s. 45 may virtually become unnecessary or futile. (paras 91 & 92)

In Dr Shanmuganathan v Periasamy s/o Sithambaram Pilla, 14 the Federal Court held: 13 [2017] 5 CLJ 418 14 [1997] 3 MLJ 61. 21 The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert, is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purported to have been written.

It was not Abdul Rahu’s pleaded case that his signature in the SNP and the PA were false. In witness statement Abdul Rahu merely averred that he did not sign any SPA or thumb print. The notes of evidence in the record of appeal15 revealed that Abdul Rahu did not once allege that the signatures in the SPA and the PA were a forgery. He merely denied they were his signatures. It is also to be noted that during the cross-examination of DW1, the Solicitor who testified that he prepared and attested the execution of the SPA and the PA, it was never put to him that the signature or thumb print in the SPA or PA are forgeries. Nor was it put to him that he lied in his testimony.

It is plain to us that forgery was not an issue raised by the Plaintiffs. That being so, the undertaking by the learned trial Judge to compare the signatures of Abdul Rahu in the witness statement and the SNP and the PA is an effort which served no purpose. The two signatures may look different but it is not unusual. Life experience would help us know better that variation in signature in the span of 37 years is not something unusual. 15 record of appeal (Part B, Volume 2(1)). 22

Abdul Rahu is a Plaintiff in this action and has personal interest in the outcome of the matter for success in the claim means recovery of his land. As such, there is probability for him to disguise his signature to fortify his denial of the signature in the SPA and the PA.

On the other hand, DW1, the Solicitor who prepared and attested the execution of the SPAs and the PA in 1979, is an independent and disinterested witness. He has no personal interest or gain in the outcome of the case and he therefore has no reason to lie. Besides, the SPAs and the PA were admitted through DW1 without objection from the Plaintiffs. DW1’s was never challenged during cross-examination and it was never put to him that he was not telling the truth.

In our view, since forgery was not raised as an issue by the Plaintiffs, the learned trial Judge has misdirected himself when he held, upon observing the difference in the signatures of Abdul Rahu appearing in the SPA and PA and his Witness Statement, made a finding on the “desirability of expert evidence to verify and confirm the thumb prints and signature in Exh. D1 an D2 as they were disputed by the Plaintiffs.”

In so holding, the learned trial Judge had wrongly disregarded the evidence of DW1, an independent witness whose unshaken oral evidence clearly established that he personally witnessed the 13 Vendors including the Deceased Vendors and Abdul Rahu sign/ thumb-print the SNP and PA before him.

Accordingly, we find merit in these three grounds of appeal. 23 GROUNDS 13, 14, 15,16, 17, 18, 19, 20, 21, 22, 23, 24 & 25

The gist of the complaints in the above grounds is that the learned trial Judge had fallen into error by failing to appreciate that DW1 had explained the SPAs and PA to Abdul Rahu and the Deceased Vendors and that his “broken Malay” or “Bahasa Pasar” did not prohibit him explaining the agreement to the 13 vendors.

Learned counsel for the 1st Defendant submitted that the learned trial Judge misdirected himself when he over emphasized the fact that Abdul Rahu and the six other Deceased Vendors were illiterate or did not understand English and that DW1 was not fluent in Malay. It was submitted that the “broken Malay” of DW1 was sufficient to explain to people who are illiterate or had attained only primary education

Learned counsel for the Plaintiffs submitted that DW1’s evidence that he had read, explained and interpreted the contents of the SPAs and PA which were written in English to Abdul Rahu and the Deceased Vendors is self-serving as there is no evidence to show that this had been done.

It was submitted that DW1 could not have explained the SPAs in Bahasa Melayu as DW1 admitted that his knowledge in Bahasa Melayu was nil. 24

It is undisputed fact that Abdul Rahu and the Deceased Vendors were all of majority age when they attended DW1’s legal firm to execute the SPAs and the PA. Although their level of education is low, there is no suggestion that they suffered from mental incapacity thus suggesting that they were capable of understanding of their purpose of going to DW1’s legal firm was to execute documents related to the sale of the said Lands. The SPAs and the PA were not complex documents with abstract ideas or technical jargons. Regard being had to the low level of education of the Deceased Vendors and Abdul Rahu, it cannot be gainsaid that the “broken Malay” or “Pasar Malay” that DW1 had learnt growing up in Lahad Datu is more effective to convey the meaning of terms and conditions of SPAs and PA to them instead of Bahasa Malaysia

Accordingly, we find there is merit in these grounds of appeal. GROUND 1:

The learned trial Judge found that the Plaintiffs’ actions fell well within the limitation period of 12 years either under item 110 or 112 of the Schedule of the Limitation Ordinance (Sabah Cap. 72) for the period stated from the point in time when the Plaintiffs discovered that the said Lands were caveated by the 1st Defendant when they went to the Central Land Office to check the status of the land application of the said Lands.16

Item 110 of the Schedule of the Limitation Ordinance (Sabah Cap. 72) provides that ‘for possession of immovable property, when the 16 Pages 44-45, Supplementary record of appeal. 25 plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession”, the limitation period is 12 years from the date of the dispossession or discontinuance.

Item 112 of the Schedule of the Limitation Ordinance (Sabah Cap. 72) provides that “for possession of immovable property or any interest therein not hereby otherwise specifically provided for”, the limitation period is also 12 years from when the possession of the defendant becomes adverse to the plaintiff.

It is undisputed fact that the Plaintiff’s actions which were initiated in 2016 were 37 years from 1979 when the SPAs and the PA were executed and immediately thereafter the 1st defendant entered the said Land to start cultivating on them without any objection from the landowners. It is beyond question that the Plaintiffs’ actions are time barred and the learned trial Judge was clearly wrong to hold otherwise.

Accordingly, we find there is merit in this ground of appeal.

For all the reasons aforesaid, it is our unanimous decision that the appeal should be allowed with costs of RM20,000.00 subject to 26 allocatur. The order of the High Court is set aside. Dated: 14th October 2019 Sgd YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellants : Pearl Lee Chee Shia (Pang Phin Ping bersamanya) [SHIM PANG & CO] For Respondents : Dennis Tweening Rantau (Sazalye Donol bersamanya) [SAZALYE DONOL MUHAMMAD & CO] Notice: This copy of the court’s reasons for judgment is subject to editorial revision.